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Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20

Date of judgement 16 January 2018 Proceeding No. 2016/00378286
Judge(s) M Harrowell, Principal Member

J McAteer, Senior Member
Court or Tribunal NSW Civil and Administrative Tribunal Appeal Panel
Legislation cited Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Gaming Machine Tax Act 2001

Liquor Act 2007

Residential Tenancies Act 1997 (Vic)

Taxation Administration Act 1996
Catchwords Gaming Machine Tax Act - liability for tax, licensee, transfer, dispute concerning fact of transfer, power to determine validity of transfer in deciding what tax is payable

Res judicata / issue estoppel - Circumstances in which it arises, decision in criminal proceedings, failure of prosecutor to prove licence transferred “beyond reasonable doubt”, effect of decision that fact not proved

Collateral challenge - power of Tribunal to conduct judicial review, administrative review proceedings, extent of permissible enquiry by one statutory decision-maker as to validity of actions of another statutory decision maker under different legislation
Cases cited AJ Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAP 40

AJ Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 17

Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81

Auld v Independent Liquor and Gaming Authority [2017] NSWCATAD 160

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 LR

Director of Housing v Sudi (2011) 33 VR 559

Effrem Foods v Trawl Industries 115 ALR 337

Hill v Woollahra Municipal Council & Ors [2003] NSWCA 106

Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

Ousley v The Queen [1997] HCA 49; (1997) 1992 CLR 69; (1997) 148 ALR 510

R v Wicks [1998] AC 92

Background

The Appellant applied to the Chief Commissioner on about 29 June 2016,  for a refund of gaming machine tax paid during the assessment periods from 1 January 2012 until 31 December 2015 (Refund Application).  The tax had been paid in relation to a license attached to a hotel known as Tommy’s Tavern located at Lismore.  As licensee, the appellant had been prosecuted for various offences under the Liquor Act. He was initially convicted. However the conviction was set aside in District Court proceedings, the court finding the alleged offence was not proved beyond reasonable doubt. Subsequently, the appellant sought a refund of the gaming machine tax which had been paid for the period 1 January 2012 until 31 December 2015 on the basis he was not the licensee at the relevant time.  

On 17 August 2016 the Chief Commissioner refused the Refund Application (Refusal Decision), stating that AJ Holdings NSW Pty Ltd was the business owner and Anthony Sidgreaves was the Licensee from 30 January 2012 to 25 January 2016. Therefore, under section 6 of the Gaming Machines Tax Act 2001 the appellant was liable to pay GMT during the period.

Tribunal review of Refusal decision

The Appellant applied to the NSW Civil & Administrative Tribunal (the “Tribunal”) for a review of the Refusal Decision, but the Tribunal ruled that the Appellant had not established on the balance of probabilities that he was not the holder of the hotel licence during the Relevant Period. 

In dismissing the Appellant’s claim at first instance, the Tribunal found that the Appellant had not discharged his onus of proof on the balance of probabilities. The Tribunal determined that the evidence did not support a finding that the Appellant was not the holder of the hotel licence for the following key reasons:

  • The Appellant accepted in cross examination that he had referred to himself from time to time as the licensee;

  • The Chief Commissioner adduced evidence regarding the Independent Liquor and Gaming Authority’s procedures relating to compliance, enforcement and licensing, and showed that the licence was in fact issued by the Authority to the Appellant in relation to the Relevant Period;

  • There was evidence of the licence being provisionally approved on 30 January 2012;

  • There was correspondence between the Appellant and the Chief Commissioner in relation to payment plans for the gaming machine tax in the course of which the Appellant referred to himself as the licensee; and

  • The District Court decision setting aside the Appellant’s conviction was not decisive for the purposes of the Tribunal having regard to the different standards of proof applying.

Appeal against Tribunal decision

On 26 April 2017, the Appellant filed a Notice of Appeal to the Appeal Panel in respect of the Tribunal’s decision.

The Appellant raised two issues in the appeal which he said were errors of law:

  • Firstly, he claimed that the licence was not validly transferred to him as the legal requirements for transfer were not met (“Invalidity of Licence Transfer Ground”).

  • Secondly, he argued that the District Court decision operated as a res judicata which bound the Tribunal (“Res Judicata Ground”).

He further raised a challenge to the Tribunal’s conclusions of fact, in respect of which leave to appeal was required.

Appeal Panel Decision

Invalidity of Licence Transfer ground

The Appellant submitted that there was never a valid licence transfer under s. 61 of the Liquor Act. He argued that because the former licensee had been evicted, an application was required to be made by the owner of the licensed premises, or the business owner, in accordance with s. 61(2). The Appellant stated he was not the owner, and no such application was made.

The Appeal Panel dismissed this ground of appeal for the following reasons.

  • Firstly, it agreed with the Chief Commissioner that this issue had not been raised at first instance, and it could not be raised on appeal: [47] and [51].  In this regard, the Appeal Panel followed the decisions of the High Court in Coulton v Holcombe (1986) 162 CLR 1 and O’Brien v Komesaroff (1982) 150 CLR 310: [52]-[53].  It was noted that in order to resolve the enquiry of whether a valid transfer of licence was made, it would be necessary to determine a number of factual issues (evidence of which had not been put before the Tribunal), and that this is not something the Appellant is able to do on appeal: [54]-[59].

  • Secondly, in circumstances where the Tribunal had before it the record indicating the transfer of the licence had been made by the Authority, the Appeal Panel held there was no basis in fact to conclude that the presumption of regularity had been rebutted, thereby following Hill v Woollahra Municipal Council & Ors [2003] NSWCA 186 and Minister for Natural Resources v NSW Aboriginal Land Council [1987] 9 NSWLR 154: [60]-[62].

  • Thirdly, the Appeal Panel accepted the Chief Commissioner’s submission that the Appellant’s assertion is a collateral attack on the decision of the Authority which was not permissible in the review application of a decision of the Chief Commissioner under the TAA.  The Appeal Panel examined the principles set out in Ousley v The Queen (1997) 1992 CLR 69 and Director of Housing v Sudi (2011) 33 VR 559, and noted at [67] that:

    • “In the context of this case, what is necessary to consider is the nature of the review and the power conferred on the Tribunal in conducting that review. What is also relevant is the decision made by the decision-maker about which review is sought.”

The Appeal Panel did not accept that the present case falls within the limited circumstances in which a collateral challenge is permitted, taking into account that:

  • There was nothing on the face of the record which would indicate the transfer of licence to the Appellant was invalid: [69].

  • The right to challenge a decision to transfer a licence by the Authority is by way of judicial review proceedings, and is not a reviewable decision within the meaning of the Liquor Act: [70].

  • In this case the Authority was charged with the administration of the Liquor Act, including determining applications to transfer licences, transferring licences to approved applicants and keeping a record of the licence holder. The Chief Commissioner had no such powers nor could it decide whether the actions of the Authority in granting a transfer or provisional transfer were lawful.  Rather, the enquiry is limited to a determination of who is in fact the holder of the licence: [72].

Res judicata ground

The Appellant contended that the previous District Court decision of Scotting J quashing the conviction of the Appellant gave rise to a res judicata (a matter that has been adjudicated by a competent court may not be pursued further by the same parties).

The Appeal Panel accepted that the judgments of Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 466-8 and of Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-2 were sound authority for the operation of the principles of res judicata and issue estoppel: [76]-[78].

The Appeal Panel concluded that res judicata did not operate in the present case, and further, that issue estoppel could not arise for the reasons stated by the Tribunal at first instance, namely that the District Court decision was (i) between different parties, (ii) involved a different standard of proof, and (iii) reached a conclusion that it had not been proved beyond reasonable doubt that the Appellant was the licensee, not that the Appellant was not the licensee: [79]-[80].

Leave to appeal

The Appellant sought to assert that the Authority’s OneGov system to which the Tribunal referred was not in operation at the relevant time and that the means of notification (of approval of licence transfer) was by electronic notice. 

The Appeal Panel observed that the case was not formulated in this way at first instance, and in any event the Appellant had not identified the evidence he relied upon.

Applying the general principles relevant to a grant of leave to appeal, the Appeal Panel noted that:

  • no relevant injustice was demonstrated;

  • it was not shown that the conclusions of the Tribunal on questions of fact were incorrect; and

  • the issues for which leave to appeal were sought did not raise questions of public importance.

Accordingly, leave to appeal was refused: [90]-[92].

Orders

  1. Leave to appeal is refused and the appeal is otherwise dismissed.

  2. The Appellant is to pay the Respondent the sum of $1,434.21 for costs (being 50% of the costs incurred by the Chief Commissioner in preparing the casebook, which the appellant was required to prepare to assist his case), such amount to be paid within 28 days of the date of these orders.

Link to decision

Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20

Last updated: 12 February 2018